Lawsuit aims to block legislators' pay raises

Complaint alleges violation of state constitution

1of2NYS Compensation Committee members, from left, H. Carl McCall, Tom DiNapoli, Scott Stringer and William Thompson, Jr. listen to testimony from Blair Horner, right, of NYPIRG during a public hearing Wednesday Nov. 28, 2018 in Albany, NY. The committee is tasked with recommending raises for state legislators and other public officials. (John Carl D'Annibale/Times Union)John Carl D'Annibale/Albany Times Union2of2NYS Compensation Committee members Scott Stringer, left, and William Thompson, Jr. during a public hearing Wednesday Nov. 28, 2018 in Albany, NY. The committee is tasked with recommending raises for state legislators and other public officials. (John Carl D'Annibale/Times Union)John Carl D'Annibale/Albany Times Union

ALBANY — The constitutionality of a special committee that awarded state legislators their first salary increase in two decades is being challenged in court.

A lawsuit filed Friday in state Supreme Court in Albany County by the conservative Government Justice Center argues that the process, which resulted in a 64 percent raise to lawmakers that will be phased in over three years, was flawed from the start because state legislators lack the authority to delegate control of their salaries.

"Rather than face the voters ... the Legislature pushed their responsibility on to a committee," reads the complaint. "Such a major policy decision should have been made by members of the Senate and Assembly in legislation as required by the (state) constitution."

The complaint alleges that the compensation committee exceeded its statutory authority by imposing limits on lawmakers' outside income, and violated the state's open meeting law during the drafting of its final report.

The suit asks the court to throw out the committee's findings and to instruct the state not to distribute any raises, scheduled to begin taking effect in January.

The plaintiffs in the lawsuit are Assemblyman Michael Fitzpatrick, R-Long Island; Saratoga County residents Robert Arrigo and David Buchyn; and Bronx resident Roxanne Delgado, who spoke out against the committee at its second and final public hearing last month.

The work of the four-member committee, which had been dogged by questions about its legitimacy since being created in last spring's state budget deal, has also generated complaints from state legislators unhappy with the curtailing of special stipends and the limits on private employment.

Following a closed-door meeting with Assembly Democrats at the Capitol on Wednesday, Speaker Carl E. Heastie indicated legislative action was possible to supersede the committee's decision to curtail private income to 15 percent of a lawmaker's public base salary.

"It's our right to fix what they've done," Heastie said, adding that "technical" flaws had been identified.

The restriction on outside income for legislators, which would take effect in 2020, is modeled after current limits on members of Congress.

Compensation committee Chair Carl McCall previously acknowledged that questions had been raised about the committee's ability to limit outside income, and he encouraged the Legislature to enact a law reaffirming the committee's decision.

Following the first hearing, state Comptroller Tom DiNapoli, another committee member (and a former Assembly member), said it was "open to question" whether the committee had the ability to impose a restriction on outside income.

The language in the state budget, which was approved by legislators and Gov. Andrew M. Cuomo, tasked the panel with determining "adequate levels of compensation, non-salary benefits, and allowances," which the committee's members determined gave them the right to impose restrictions on what legislators could earn outside their elective offices.

But Heastie insists it was never the Legislature's intention for the committee to assume that right. "They pretty much decided upon themselves to deal with the operations of the house," he said.

Speaking to the Capitol Pressroom on Friday, Cuomo dismissed the suit as a right-wing crusade, and warned that Heastie's critique of the committee would help "fuel the lawsuit."

"I believe the law is going to be upheld, but I believe the rhetoric has made the lawsuit more problematic," Cuomo said. "I do believe the commission acted within their authority."

Richard Brodsky, a former Democratic Assemblyman from Westchester County, said it was "highly uncertain" whether the formation of the committee was constitutional. He described the committee's process and its report as "bizarre," arguing that the state constitution clearly outlined the requirements for a legislative pay raise.

In 1947, New Yorker approved a constitutional amendment authorizing state legislators to adjust their salary by statute, as long as the changes didn't take effect until a new Legislature took office.

Brodsky also decried the linkage of future raises for legislators to the passage of on-time budgets, saying it ran afoul of the state's bribery statutes. The same concern was raised in the lawsuit, which equated the process to an "unconstitutional quid pro quo mechanism."

Assemblyman Michael DenDekker, D-Queens, pledged on Twitter to abstain from voting on the budget this year, saying it was "unethical and illegal" to trade a vote for a pay raise. His Democratic colleague Thomas Abinanti of Westchester County said the arrangement was "legalizing extortion," and pointed out the same strings weren't attached to the raises for Cuomo's cabinet.

Based on the committee's recommendations, legislative salaries are poised to go from $79,500 to $110,000 in January — the first raise for the lawmakers in 20 years — and increase to $120,000 in 2020 and $130,000 in 2021. Salaries for agency heads, the state comptroller and state attorney general will also be increased.

David began reporting in the summer of 2009 as an intern with the Legislative Gazette.

He then worked for the Daily Gazette, covering state government, gambling issues, and Saratoga County. His political blog won first prize for blogging in 2013 from the New York State Associated Press Association.

David most recently worked as capitol reporter and development strategist for New York StateWatch, an online non-partisan reporting service.